Welcome Welcome to the Spring 2016 issue of Environment and Energy Law. If you would like further details on any of the areas covered in this newsletter then please contact one of our partners or have a look on our website at www.burges- salmon.com Environment and Energy Law Newsletter Spring 2016 Visit our website at www.burges-salmon.com continued on page one Carbon and climate change Paris Agreement on Climate Change In a major speech in January 2016, UK Special Representative for Climate Change Sir David King referred to the Paris Agreement on Climate Change, agreed in December 2015, as “a turning point in human history” and the “biggest opportunity of our age”. Fair assessment, or ‘irrational exuberance’? What is clear is that 195 countries put behind them the failures of earlier summits such as Copenhagen, and many of the sterile arguments between ‘developed’ and ‘developing’ countries, and agreed a common aim and a common framework for achieving much more ambitious goals on controlling climate change. The Paris Agreement at COP 21 (A.2)…”aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by: Holding the increase in the global average temperature to well below 2 o C above pre- industrial levels and to pursue efforts to limit the temperature increase to 1.5 o C above pre- industrial levels, recognising that this would significantly reduce the risks and impacts of climate change; Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate – resilient development.” The Agreement itself will be legally binding, but each country’s “Nationally Determined Contributions” (NDCs) will not. International engagement, transparent reporting and pressure from civil society will be the means for ensuring that countries’ commitments are maintained. Contents Carbon and climate change p1 Environmental liability and environmental permitting p4 Air quality and emissions p5 Chemicals and product stewardship p8 Energy p11 Waste p14 Water p16 Environmental enforcement p17 Devolution and Europe p18 Burges Salmon news p20 Upcoming events p20 Publications list p20 Environment and Energy partners p20
20
Embed
Newsletter Environment and Energy Law - Burges Salmon€¦ · · 2016-05-25Environment and Energy Law Newsletter Spring 2016 Visit our website at continued on page one Carbon and
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Welcome
Welcome to the Spring
2016 issue of Environment
and Energy Law. If you
would like further details on
any of the areas covered in
this newsletter then please
contact one of our partners
or have a look on our
website at www.burges-
salmon.com
Environment and Energy Law
Newsletter
Spring 2016
Visit our website at www.burges-salmon.com
continued on page one
Carbon and climate changeParis Agreement on Climate Change
In a major speech in January 2016, UK Special
Representative for Climate Change Sir David King
referred to the Paris Agreement on Climate Change,
agreed in December 2015, as “a turning point in
human history” and the “biggest opportunity of our
age”. Fair assessment, or ‘irrational exuberance’?
What is clear is that 195 countries put behind them the
failures of earlier summits such as Copenhagen, and
many of the sterile arguments between ‘developed’
and ‘developing’ countries, and agreed a common
aim and a common framework for achieving much
more ambitious goals on controlling climate change.
The Paris Agreement at COP 21 (A.2)…”aims to
strengthen the global response to the threat of climate
change, in the context of sustainable development and
efforts to eradicate poverty, including by:
�� Holding the increase in the global average
temperature to well below 2oC above pre-
industrial levels and to pursue efforts to limit the
temperature increase to 1.5oC above pre-
industrial levels, recognising that this would
significantly reduce the risks and impacts of
climate change;
�� Increasing the ability to adapt to the adverse
impacts of climate change and foster climate
resilience and low greenhouse gas emissions
development, in a manner that does not threaten
food production;
�� Making finance flows consistent with a pathway
towards low greenhouse gas emissions and
climate – resilient development.”
The Agreement itself will be legally binding, but each
country’s “Nationally Determined Contributions”
(NDCs) will not. International engagement,
transparent reporting and pressure from civil society
will be the means for ensuring that countries’
commitments are maintained.
Contents
Carbon and climate change p1
Environmental liability and environmental permitting p4
Air quality and emissions p5
Chemicals and product stewardship p8
Energy p11
Waste p14
Water p16
Environmental enforcement p17
Devolution and Europe p18
Burges Salmon news p20
Upcoming events p20
Publications list p20
Environment and Energy partners p20
22
continued from page one
The machinery for five yearly reviews and a periodic “global
stocktake” in the full light of public scrutiny, actions before 2020,
alignment of reporting and transparency, technology transfer and
funding aims of US$100 billion per year for developing countries will
be part of the challenge of making the Paris Agreement effective.
The ‘progressive approach’, ratcheting up increasingly ambitious
national contributions, will be very important.
It seems inevitable that there will be many setbacks along the
way, such as the US Supreme Court’s 5-4 vote against early
implementation of the administration’s emissions control plans.
The law and regulation on climate change can be expected to
develop from the political lead from Paris. NDCs need to be
translated into national programmes. At the regional and EU level
in particular, legislation to implement, develop and enforce the
political consensus will be required. National legal developments
country by country will be crucial, but so will the contributions of
some 7,000 cities worldwide engaged with the process, the point
at which business is sufficiently persuaded of the direction of travel
to scale up investment, and the continued active engagement of
civil society.
The Paris Agreement will be open for signature on 22 April 2016,
and will come into force when ratified by 55 parties accounting for
55 percent of total global greenhouse emissions.
For further information about the potential impacts of the
Paris Agreement for your business, or to discuss in-house
training on the Agreement that we could offer, please contact
Michael Barlow, Partner on +44 (0) 117 902 7708 or email:
Partner on +44 (0) 117 902 7708 or email: michael.barlow@
burges-salmon.com
New Energy Savings Opportunity Scheme (ESOS) now in operation The Government’s new scheme aimed at promoting energy
efficiency measures within specified undertakings – ESOS – is
now in full operation, and all those organisations falling within its
remit must have regard to the obligations it places on them. The
initial deadline for compliance with ESOS has passed, as has an
additional longstop date by which late reporting entities could aim
to avoid enforcement action.
ESOS is designed to address Article 8 of the EU Energy Efficiency
Directive 2012, and requires UK entities of a certain size to measure
their energy consumption, undertake an audit of opportunities to
bring efficiency savings to such consumption, and report to the
Environment Agency to confirm compliance.
Entities (or “undertakings” ) that employ at least 250 people or that
have an annual turnover of over €50 million and an annual balance
sheet of over €43 million will generally qualify for ESOS and will be
required to prepare an ESOS audit, as will an entity that has such a
“large undertaking” within its group.
Qualifying undertakings must report to the Environment Agency,
confirming that this audit has taken place. The deadline for this
report was 5 December 2015, though the Agency also indicated
that enforcement action would, generally, not be taken if notification
was provided by 29 January 2016.
This is a significant scheme for companies to be aware of, as fines
for non-compliance can be up to £50,000.
For further information please contact Simon Tilling, Senior
Associate on +44 (0) 117 902 7794 or email: simon.tilling@
burges-salmon.com
General scaling back of UK carbon ambitions?Since the May 2015 election there has been a general scaling back
of initiatives aimed at reducing carbon emissions. In July 2015 the
new Government announced that it would no longer pursue its target
for all new homes to be zero carbon homes, despite the ongoing EU
goal for all new buildings to achieve nearly zero energy standards
by 2020. This was followed in November by the announcement that
the capital budget of £1billion previously ring-fenced for a nationwide
competition to develop carbon capture and storage (CCS) projects
would no longer be available. Meanwhile the recent Government
consultation on energy efficiency suggests a considerable
streamlining of reporting and regulatory measures. This has all taken
place at the same time as domestic energy efficiency programmes
such as the Green Deal and ECO have been cut back.
There is a contrast between these national policies and the
government's declared international ambitions, for example in the
Paris Agreement on Climate Change.
Energy Company Obligation to be refocused after 2017Government has announced that the Energy Company Obligation
(ECO) scheme will be changed after the current obligation phase
ends on 31 March 2017.
ECO was introduced by the Coalition Government in 2012 to
require UK energy suppliers to fund energy efficiency measures in
UK homes as part of the package of energy efficiency measures
in the Energy Act 2011. ECO has received significant criticism
from energy suppliers on the basis that the cost of compliance
has led to higher energy bills. ECO has funded significantly more
energy efficiency measures that the voluntary Green Deal scheme
introduced at the same time.
The original intention was for ECO to run in a series of phases after
2017 but it was announced in the Autumn Statement that the policy
was being reconsidered. Government recently announced that ECO
will continue but that from 2018 it will be refocused on improving
vulnerable homes instead of reducing carbon emissions through
changes to the targets for ECO sub-obligations. 2017 will act as
a transition year for the changes. It is not yet clear whether the
overall obligations on energy suppliers will be reduced.
4
Environmental Liability – UK Courts consider the meaning of environmental damage for the first timeThe Environmental Liability Directive is implemented in the UK
by the Environmental Damage (Prevention and Remediation)
Regulations 2015 (in England) and 2009 (in Wales). Under both sets
of regulations operators of certain activities are obliged to prevent
and remediate environmental damage.
In the case of (R (Seiont, Gwyrfai and Llyfni Anglers' Society) v
Natural Resources Wales and others, (a case in which Burges
Salmon were involved) an angling Society with fishing rights on a
lake in Snowdonia noticed a significant decline in the population
of resident Arctic charr since the 1990s and subsequently notified
Natural Resources Wales (NRW) that environmental damage was
being caused by discharges from sewage treatment works.
In December 2014, NRW decided that no environmental damage
was being caused from the discharges, a decision which the
Society judicially reviewed primarily on the basis that NRW had
wrongly applied the concept of environmental damage by limiting
its assessment to the direct impact of the discharges on the
environmental situation and/or the deterioration of a particular
aspect of the lake and ignoring the indirect inhibitory impact
the discharges were alleged to be having on improving the
environmental situation.
In the first ever Court ruling on the meaning of environmental
damage, the Court found that the concept of environmental
damage was limited to deterioration of the environmental
situation and did not include events or omissions with prevented
improvements to an already damaged environmental state or
slowed down any rate of improvement.
The significance of this ruling is that the key obligations under the
UK regulations to prevent and remediate environmental damage
Burges Salmon has advised Government, Energy Companies
and the energy efficiency industry on ECO. For more
information please contact Ella Curnow, Associate on +44 (0)
REACH EnforcementRecent weeks have seen a number of noteworthy announcements
from ECHA about compliance with, and enforcement of, obligations
under REACH.
December 2015 saw the publication of the final report of REACH-EN-
FORCE 3, an enforcement project co-ordinated by ECHA's Enforcement
Forum with the intention of investigating levels of compliance with
the Registration obligations placed upon manufacturers, importers
and Only Representatives. As part of the project, enforcement
authorities in 28 countries inspected 1,169 companies and 5,746
substances in two phases in 2013-14. The project uncovered
significant levels of non-compliance, with 13% of companies
inspected failing to comply with their REACH registration requirements
in some respects and 2% of those inspected having failed to register
any of their relevant substances. The report recommended that more
attention needs to be paid in future to importing companies and
that Only Representatives should be considered a group particularly
at risk of non-compliance. Companies falling into these categories
should expect ECHA and national enforcement authorities to show
heightened interest in their compliance.
“The project uncovered significant levels of non-compliance, with 13% of companies inspected failing to comply with their REACH Registration requirements...”
10
On 13 January 2016, ECHA published a news item drawing
attention to the new compliance check strategy which it had started
to implement in 2015. ECHA's strategy focuses on checking the
dossiers of those substances which are most important in terms
of protecting people and the environment. In its announcement,
ECHA revealed that it had checked the dossiers of 107 high priority
substances and has promised further statistical information relating
to the strategy in its annual evaluation report.
Registrants should pay particular attention to shortlisted substances
and expect further regulatory activity in relation to them. In this
vein, on 27 January 2016, ECHA announced that it had shortlisted
almost 300 substances from REACH Registrations and earmarked
these for further attention by Member States' enforcement
authorities. The substances selected are registered by almost
1,500 companies, and those affected receive letters from ECHA
informing them of the potential examination of their Registrations.
Companies receiving such letters should carefully consider
addressing any weaknesses in their dossiers as soon as possible.
For further information please contact Simon Tilling, Senior
Associate on +44 (0) 117 902 7794 or email: simon.tilling@
burges-salmon.com or William Wilson, Barrister on +44 (0) 117
“Organisations can participate in DSR directly or via aggregators and thereby supplement income if they are able to put in place procedures or systems which allow more flexible electricity consumption.”
13
ONTOs Ofgem has plans to introduce competitive tendering for some
on-shore electricity transmission equipment and projects. A
consultation on Ofgem’s plans closed in January 2016.
It is expected that first projects covered by these proposals would
be announced in mid-2016, with first tenders in 2017.
For further information on ONTO tendering issues and
regulatory incentives for Competitively Appointed Transmission
Owners, please contact James Phillips, Partner on +44 (0) 117
Court of Appeal on the Environment Agency’s approach to the waste recovery v disposal testOn receipt of an application for a standard environmental permit
for waste recovery, the Environment Agency must decide whether
the operation is actually waste disposal which requires a bespoke
environmental permit. The legal framework applicable to waste
disposal and recovery is set out in the Waste Framework Directive
(WFD) and implemented in the UK through the Environmental
Permitting regime. The Environment Agency has also issued
Regulatory Guidance Paper no.13 (Defining Waste Recovery:
Permanent Deposit of Waste on Land) (RGN 13).
In the case of R (on the application of Tarmac Aggregates Limited
(formerly Lafarge Aggregates Limited)) v The Secretary of State for
Environment, Food and Rural Affairs, Tarmac Aggregates Limited
(TAL) ran a quarry and was obliged, by a condition attached to its
original planning permission, to restore the site in accordance with the
plan it had agreed with the local planning authority. This plan involved
the use of inert waste to backfill parts of the quarry excavations to
provide recreation / amenity benefits to the public. Understanding the
proposed restoration works to be a waste recovery operation, TAL
applied for a standard permit for waste recovery.
This application was refused by the Environment Agency on the basis
that under RGN 13, the operation amounted to a waste disposal
operation. TAL appealed to the Secretary of State who duly appointed
an inspector. Both the inspector and then the High Court dismissed its
appeals but TAL went on to appeal to the Court of Appeal.
The Court of Appeal upheld the appeal finding that the restoration
plan in question was a waste recovery operation. The Court
emphasised that TAL was legally obliged to undertake the
restoration works agreed with the local planning authority whether
waste was used or not and that as a result the use of inert waste
clearly avoided the use of virgin material. On this basis the Court
held that the restoration works were to be considered a waste
recovery operation for the purposes of the WFD.
This decision could have significant implications for the aggregates
industry in which operators are often obliged to restore their sites
after use and have found it increasingly difficult to obtain waste
recovery permits from the Environment Agency in relation to the
backfilling of quarry voids with inert waste.
Updated standard rules for waste published by the Environment AgencyUnder the Environmental Permitting regime the Environment Agency
can issue either a standard permit for facilities presenting a low
risk to the environment or bespoke permits for a higher risk facility
or a lower risk facility in a sensitive area. The application process
for standard permits and the permit itself is more straightforward
as the permit simply requires the operator to comply with a set of
published standard rules for the activity concerned.
On 1 December 2015 the Environment Agency published a number
of updated standard rules covering the transfer of waste, biological
treatment (including composting), metal recovery and scrap metal
and materials recovery and recycling.
Government response to consultation on waste enforcement powersIn October 2015 the government published a response to its
February consultation on strengthening regulators’ powers the
recommendations of which were largely implemented by the
Environmental Permitting (England and Wales)(Amendment)(No.3)
Regulations 2015 which came into force on 30 October 2015.
The following changes have been made to the Environmental
Permitting (England and Wales) Regulations 2010:
�� Regulation 37 now empowers regulators to issue a suspension
notice (where there has been a breach of permit condition and a
consequent risk of pollution) and require the operator to advertise
that certain wastes can no longer be accepted on the site;
�� Regulation 42 now allows regulators to apply to the High Court
for an injunction to secure compliance regardless of whether it
has taken other enforcement action;
�� Regulation 57 now allows regulators to restrict access to a
site where they are taking steps to remove a risk of serious
pollution, whether a permit or exemption is in place or not.
The consultation response also provides that the government will
extend the scope of sections 59 and 59ZA of the Environmental
Protection Act 1990 to cover waste that has been unlawfully kept on
land as well as unlawfully deposited i.e. to address circumstances
where waste is initially lawfully deposited but is illegally kept on the site.
Other measures included in the response included:
�� A request to regulators to consider how the permitting process can
be revised to ensure that landowners are fully informed in relation
to the waste operations that will be taking place on their sites;
�� A request to the Insolvency Service to crack down on Directors
of waste companies that repeatedly offend; and
�� Undertakings to consult further on:
– Amending legislation to include requirements for operator
competence and site management plans;
– The requirement for financial security for waste
management operations;
– Further powers to recharge for pollution works; and
– Proposals to reform the exemptions regime.
For further information please contact Michael Barlow, Partner
on +44 (0) 117 902 7708 or email: michael.barlow@burges-
salmon.com or Ella Curnow, Associate on +44 (0) 117 307 6814
Corporate Manslaughter and health and safety: parent company responsibility for subsidiary When a safety incident happens, the common assumption is that
it will just be the legal entity delivering the relevant activity that is
likely to be investigated. However, case law confirms that this is
too simplistic. In a recent case a parent company was convicted of
corporate manslaughter and fined £600,000 for health and safety
failings at its subsidiary.
Environmental enforcement
The courts look at the relationship and responsibilities in practice,
boundaries created by legal entities are not absolute. Key questions
to determine this include: whether what the parent company did
amounted to taking on a direct duty of its subsidiary? Could the
subsidiary take action without the approval of the parent company?
Was the parent company aware of the issues? The degree of control
does not have to be absolute to assume a legal duty, but probably
goes beyond intra-group coordination or the shared use of resources.
Just as there is no automatic ring-fencing of liability just because
a company divides itself into separate legal entities, it is not
the case that every parent company is fixed with the failings of
its subsidiaries. Each case is very fact dependent and it is not
necessarily the case that exactly the same tests would be applied
to environmental cases as to safety cases.
There are circumstances when keeping a subsidiary separate
in terms of its governance and resourcing are both beneficial
commercially and can effectively limit exposure in the event of a
competent authority investigation. However, it is clear that turning a
blind eye and hiding behind a corporate structure where there is a
genuine element of operational control is unlikely to be an effective
shield against a prosecution if legislation is breached.
Burges Salmon has prepared a more detailed briefing on this
case and its implications. For further information or to receive
a copy of the briefing on this recent case, please contact Matt
Kyle, Senior Associate on +44 (0) 117 902 7215 or email: matt.
Energy and Environment partner James Phillips is one of three Burges Salmon partners who have recently passed the Law Society of Scotland’s transfer test and are now Scots qualified
solicitors. Banking and Finance lawyers Richard Leeming and Katie Allen have also dual qualified.
The firm has for many years advised on Scots law matters but, to date, all that work has been carried out by solicitors who were qualified in Scotland before joining Burges Salmon. This is the first time any of our existing English solicitors have re-qualified for Scots law and now brings the number of Scots qualified solicitors in the firm to 16 (including four partners).
Newly Scottish qualified lawyers at Burges Salmon
Testing Times: Criminal culpability in the Volkswagen emissions scandal
LexisPSL – Environment analysis: air quality
LexisPSL – Environment end of year review – a look forward to 2016
LexisPSL – Environment end of year review – life in 2015
Contaminated Land – True or False?
Enforcement trends and targets in waste crime
REACH: CJEU judgment on SVHCs in articles
Site closures: managing the environmental issues
Nuclear Law newsletter – Spring 2016
Oil&GasCONNECT – Feb 2016
Upcoming eventsHot Topics in Environmental Law – Autumn 2016
To receive further details about this forthcoming event or to register an interest in attending, please contact Michael Barlow, Partner on +44 (0) 117 902 7708 or email: [email protected]
Waste seminars For further information about Burges Salmon's forthcoming waste seminars, please contact Nick Churchward, Partner on +44 (0) 117 307 6998 or email: [email protected]
Procurement law in the nuclear industry
In House Lawyer article – November 2015
How the Courts approach the automatic suspension of procurement procedures when a claim is brought
New and revised standard forms for publishing public procurement notices
Cabinet Office guidance on the use of the Public/Public contract exemption
Food Farming and Land Quarterly newsletter – Winter 2015
Environment, climate, air quality and investment
Volkswagen and a new landscape for product stewardship